Citizens Property Ins. Corp. v. Laguerre

259 So. 3d 169
District Court of Appeal of Florida·Decided August 22, 2018·No. 15-2411·Published·Cited by 8 cases

Opinion

Third District Court of Appeal State of Florida

Opinion filed August 22, 2018.

Not final until disposition of timely filed motion for rehearing.

No. 3D15-2411

Lower Tribunal No. 10-50915

Citizens Property Insurance Corporation, Appellant,

vs.

Agosta Laguerre,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Jorge E. Cueto, Judge.

Link & Rockenbach, PA, and Kara Berard Rockenbach and Rachel J.

Glasser (West Palm Beach); Hudson & Calleja, LLC, and Alexis Ann Calleja, for appellant.

Alvarez, Feltman & DaSilva, PL., and Paul B. Feltman, for appellee.

Before LAGOA, SALTER, and EMAS, JJ.

LAGOA, J.

Citizens Property Insurance Corporation (“Citizens”) appeals from an Order on Plaintiff’s Motion to Determine Amount of Fees and Costs and for Lodestar Multiplier awarding Agosta Laguerre (“Laguerre”) $120,250.00 in attorney’s fees. As discussed below, based on Joyce v. Federated National Insurance Co., 228 So. 3d 1122 (Fla. 2017), we conclude that the trial court did not abuse its discretion in awarding Laguerre a contingency fee multiplier,1 and we affirm. I. FACTUAL AND PROCEDURAL HISTORY Following Hurricane Wilma, Laguerre made an insurance claim for wind damage to her insurer, Citizens. Citizens investigated the claim and paid Laguerre $8,400.77 in December 2005. On March 3, 2010, Tony Quintana (“Quintana”) of Claimserve, Co. (“Claimserve”), sent a letter to Citizens stating that he had been retained by Laguerre and that she demanded appraisal of the claim under the terms of Laguerre’s insurance policy. Quintana attached an appraisal estimate prepared by Claimserve in the amount of $60,256.79. Citizens sent Laguerre two requests for information to which it claims Laguerre did not respond. On May 12, 2010, Laguerre retained the law firm of Alvarez, Carbonell & Gomez, PL, to represent Laguerre in her claim. Citizens sent a letter to Laguerre on July 9, 2010, stating that it would close Laguerre’s claim if it did not receive a response from Laguerre within fourteen days. Citizens then closed the claim on July 27, 2010.

1 Citizens does not challenge the award of the lodestar amount to Laguerre’s counsel on appeal.

Laguerre filed suit against Citizens on September 20, 2010, alleging that Citizens had materially breached the insurance policy by failing to participate in the appraisal process. After Citizens filed its answer and affirmative defenses, it filed a motion for summary judgment on December 20, 2010, to which Laguerre filed a memorandum in opposition. After a hearing, the trial court denied Citizens’ motion for summary judgment on May 10, 2011. On July 24, 2012, Citizens filed a proposal for settlement to Laguerre in the amount of $2,000.

Following the depositions of Laguerre and Quintana, Citizens filed a renewed motion for summary judgment on August 30, 2012. Laguerre filed a response to the motion. The trial court denied Citizens’ renewed motion for summary judgment on April 8, 2013.

On May 16, 2013, Laguerre filed a motion to compel appraisal and abate the action. After a hearing, the trial court granted the motion and the matter proceeded to appraisal. The appraisal umpire ultimately issued an award in the amount of $27,367.63 on February 17, 2014.

Citizens agreed that Laguerre was entitled to attorney’s fees under section 627.428, Florida Statutes (2014), and on August 13, 2014, the trial court held a fee hearing on the issue of the lodestar amount and whether a multiplier was justified. At the fee hearing, Laguerre presented the expert testimony of Roniel Rodriguez (“Rodriguez”). Rodriguez testified that these types of cases, which he described as

first-party, late notice cases, “have become very, very difficult.” Rodriguez testified that:

The difficulty with these cases is disparity between the insureds and the insurance companies. Insurance companies have a lot of funds. They’re able to hire very, very skilled lawyers, like the lawyers we have in the room today, to challenge every aspect of the case. They have the ability to appeal every component of the case and a decision they don’t find favorable, which makes it very difficult for insureds. Insureds have a difficult time finding qualified and capable lawyers because of the risk that’s involved. These cases take a lot of time to mature. Here, we have a case from 2010 and we’re now in 2014 and we’ve now come to a resolution, meaning the cost that’s incurred by Plaintiff’s counsel handling these cases on a contingency is a huge risk.

(emphasis added). He also testified as to the complexity of this type of case: “So there is not a resolution, which makes the complexity of the case significant in finding adequate counsel.” Rodriguez opined that a 1.6 or 1.7 multiplier would be appropriate in “this type of case.” Citizens cross-examined Rodriguez only with regard to his testimony on the reasonableness of the hourly rate sought by Laguerre’s attorney.

Citizens presented the testimony of its fee expert, Dawn Jayma. She testified that Laguerre’s attorneys “have thousands and thousands of these cases” and that the case was a run-of-the-mill property case, was not complex, as it concerned standard defenses, and thus did not warrant a multiplier. She also

testified that neither Laguerre nor an expert presented any evidence “that the client themselves called around town and couldn’t find somebody to take their case.”

Following the fee hearing, the trial court entered an Order on Plaintiff’s Motion to Determine Amount of Fees and Costs and for Lodestar Multiplier (the “fee order”) on September 15, 2015. The trial court applied an hourly rate of $325.00 and found that the reasonable number of hours expended in the matter was 185 hours, resulting in a lodestar amount of $60,125.00. The trial court also applied a 2.0 multiplier based on its findings that:

1) “[t]he relevant market requires a fee multiplier to obtain competent counsel”;

2) “Plaintiff’s counsel faces a substantial risk of nonpayment ”;

3) “[t]he likelihood of success at the outset of the case, including compensation of Defendant’s valuation of the claim in the Proposal for Settlement of $2,000.00 inclusive of attorney’s fees and costs served to the Plaintiff in this action”; and, 4) “[t]he novelty and difficulty of the question involved in this matter and the results obtained.”

The trial court further stated it “considered all of the relevant factors set forth in the Rules Regulating Florida Bar 4-1.5 and the Supreme Court’s Opinions in Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985) and Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990).” After applying the 2.0 multiplier to the lodestar amount, the trial court awarded Laguerre $120,250.00 in attorney’s fees.

On September 30, 2015, Citizens filed a motion for rehearing relying upon State Farm Florida Ins. Co. v. Alvarez, 175 So. 3d 352 (Fla. 3d DCA 2015), which this Court issued one day after the trial court entered the fee order. Relevant here, Citizens argued that under Alvarez, no multiplier was warranted because there was no evidence presented at the fee hearing that Laguerre had difficulty obtaining counsel, the results obtained did not warrant a multiplier, and a multiplier cannot be based on the complexity of the issues. The trial court subsequently conducted a hearing on the motion for rehearing. At the hearing, the trial court stated that there was “no testimony [at the fee hearing] to the contrary” of Rodriguez’s testimony that “this lady would have had a hard time finding a lawyer because of the problematic nature of winning these cases.” The trial court upheld its multiplier award, stating:

And that’s why I did what I did, because there was no evidence to counter that, there was no cross-examination.

Nobody asked Mr. Rodriguez: Mr. Rodriguez, why are you saying that this lady could have not found - -

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Citizens Property Ins. Corp. v. Laguerre, 259 So. 3d 169 (Fla. Ct. App. 2018).

259 So. 3d 169 (Citizens Property Ins. Corp. v. Laguerre) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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